刑罚私约化:晚清至民国时期清水江流域民间司法面向

Private Contract of Penalty:the Folk Justice in Qingshuijiang River Basin from the Late Qing Dynasty to the Republic of China

在以往的契约法制研究中,学者们更多把目光聚焦在民事法律方面,而将契约放置于刑事法律方面进行探讨的不多。依据清水江文书材料,将刑罚类契约文书进行类型化分析,发现当发生偷盗、抢夺、犯奸、发塚盗墓等刑事案件时,并未送官依律查办,而是两造一方请得当地"权威人物"主持调解,征得受害人一方谅解,立下戒约、悔错等契约文书,达成"刑事和解"。这体现了有限范围内的正当性,可为当下发展和完善刑事和解制度提供历史镜鉴。

In the past research studies on the legal system of contract,researchers paid more attention to the civil law than the contract in the penalty.Based on the literature of Qingshuijiang Documents,the present paper made a typological analysis of penalty contract documents.It was found that when there were criminal cases such as theft,robbery,adultery,grave robbery and so on,they were not sent to the official for investigation and handling according to the law.Instead,the two parties asked the lo cal“authoritative person”to preside over the mediation,obtaining the understanding of the injured par ty,and establishing contract documents such as renunciation and regret of mistakes,so as to achieve“criminal reconciliation”.This reflected the legitimacy within a limited scope,which could provide a historical mirror for the current development and improvement of the criminal reconciliation system.